Yes—Trump’s lawyers wrote the 49 questions. Not Mueller. Not Mueller’s office.
That is important.
Most headlines and most news stories talk about the 49 questions that Mueller’s office gave to Trump’s attorneys. That is not an accurate description.
Reading carefully, the actual news reports say that Mueller’s office talked to Trump’s lawyers about what they wanted to ask Trump. Then Trump’s lawyers summarized their conversation, writing down 49 questions.
Was this list a word-for-word list of questions that Mueller’s office said they would ask Trump? Absolutely not.
Do the questions accurately reflect what Mueller’s office said to Trump’s lawyers? We do not know.
Who leaked the questions? We do not know. Not Trump’s legal team, according to the New York Times, which obtained the list from someone. Not Mueller’s office, because the questions were “compiled into a list” by Trump’s attorneys.
Here are the sources and details about the questions:
The original story in the New York Times (4/30/18) includes this revealing paragraph:
“What efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?” Mr. Mueller planned to ask, according to questions read by the special counsel investigators to the president’s lawyers, who compiled them into a list. That document was provided to The Times by a person outside Mr. Trump’s legal team.” [Emphasis added]
A May 2 ABC News story about Trump lawyer Ty Cobb’s resignation tosses off this aside:
“ABC News confirmed that the president’s legal team created a list of 49 questions based on the ongoing negotiations with Mueller’s team.”
Writing in Lawfare Blog, Benjamin Wittes (editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution) affirms that the questions did not come from Mueller, and offers this analysis:
“Second, the Times’s sourcing is opaque as to how the list made its way to the paper, and it is thus unclear whether the reader should take these questions as Trump-team spin of some kind or as a neutral account, produced by the president’s lawyers for their client’s benefit, of what subjects the investigators actually want to cover. The story says the leak came from outside the Trump legal team. But the reader cannot tell whether these questions were leaked by someone, for reasons of his or her own, who for some unfathomable reason was given access to this attorney-client work product, or whether they were leaked by someone—say, a PR person—who was given access to the material by the legal team so that he or she should make it public….
“My point here is not to splash cold water on the story. It is simply that one should not read the list of subjects as the specific questions Mueller wants to ask Trump; they almost certainly are not that. And readers should harbor at least some skepticism as to how closely the questions reflect Mueller’s thinking, rather than the Trump team’s thinking about Mueller’s thinking—or even what the Trump team wants the public to think it is thinking about Mueller’s thinking.”
The Washington Post analyzes possible sources of and reasons for the leak of the questions, noting the NYT description of the questions as “compiled” by Trump’s legal team, and concludes:
“Based on the Times’s account, we can conclude that the leak did not come from the special counsel’s office — unless Trump’s lawyers shared their document listing Mueller’s questions with Mueller’s investigators, which would make little sense.
“It appears that one of two things happened: Trump’s legal team was careless with the list, allowing it to fall into the wrong hands, or the president’s lawyers orchestrated a James B. Comey-style disclosure through an intermediary.”
So what does it all mean? New York magazine speculates on three possible reasons for the leak:
- to convince Trump not to do the interview,
- to convince the public that Mueller is biased, t
- o convince Congress to stop Mueller.
Or maybe all of the above.
Here’s one more question: why is the story still about “Mueller’s questions” and not about “Trump’s legal team’s questions” or “another White House leak of information of questionable accuracy”?